# Saurabh Kumar v. State of U.P

- **Citation:** (2024) 5 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-24
- **Case number:** Criminal Appeal No. 5905 of 2018
- **Bench:** Rahul Chaturvedi, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-kumar-v-state-of-u-p-52113
- **Pages:** 24

## Headnote

Law-Criminal
Procedure
Code,1973-Section
374(2),
319-Indian
Penal Code, 1860-Sections 302 & 34Challenge to - conviction-appellant along
with co-accused was convicted of murderthe appellant was not initially named in the
FIR-his name was introduced late in the
investigation-he was brought into trial u/s
319 Crpc-no direct evidence or recovery of
incriminating materials linking him to the
crime-no clear motive was established -no
active participation is established against
the
appellant-prosecution
failed
to
establish evidence of conspiracy of the
appellant with co-accused-The court held
that findings recorded by the trial court is
not
based
on
correct
and
proper
appreciation
of
evidence-hence,
the
conviction of the appellant on the basis of
present
set
of
evidence
cannot
be
sustain.(Para 1 to 62)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,985 of 80,558. This is a partial read: ask again with offset=39985 for what follows._

5 All. Saurabh Kumar Vs. State of U.P.
999
(10) All the sentences shall run
concurrently.

63. Accordingly, present Criminal
Appeal No.5218 of 2016 is allowed and
Criminal Appeal Nos.5501 of 2016, 5502 of
2016 and 5649 of 2016 are partly allowed
and the impugned order assailed in these
criminal appeals stand modified/altered to
the extent stated as above.

64. Appellants Dhruvjeet Singh,
Vimlesh Singh and Akhilesh Singh are
directed to furnish a personal bond, each and
two sureties each in the likeamount to the
satisfaction of the learned trial court/Session
Judge, Ghazipur as the case may be, in
compliance of Section 437-A of Cr.P.C.
within seven days of their release from jail
pursuant to this modified order as they have
already undergone the modified sentence as
awarded in present judgement. Appellants
Rakesh Kumar Singh and Santosh Singh
will serve out the sentence as modified in
present judgement in accordance with law,
as they are stated to be in jail custody in
present offence.

65. Let a certified copy of this
judgement and lower court record be sent
back forthwith to Session Judge, Ghazipur
for compliance.
----------
(2024) 5 ILRA 999
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 5905 of 2018

Saurabh Kumar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Lav Srivastava, Anurag Pathak, Arun Kumar
Sharma, Rajan Srivastava, Randhir Singh, Sanjay
Kumar Yadav, Sr. Advocate

Counsel for the Respondent:
G.A., Amit

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section
374(2),
319-Indian
Penal Code, 1860-Sections 302 & 34Challenge to - conviction-appellant along
with co-accused was convicted of murderthe appellant was not initially named in the
FIR-his name was introduced late in the
investigation-he was brought into trial u/s
319 Crpc-no direct evidence or recovery of
incriminating materials linking him to the
crime-no clear motive was established -no
active participation is established against
the
appellant-prosecution
failed
to
establish evidence of conspiracy of the
appellant with co-accused-The court held
that findings recorded by the trial court is
not
based
on
correct
and
proper
appreciation
of
evidence-hence,
the
conviction of the appellant on the basis of
present
set
of
evidence
cannot
be
sustain.(Para 1 to 62)

The appeal is allowed. (E-6)

List of Cases cited:

1. St. of U.P. Vs Naresh & ors. (2011) 4 SCC 324

2. Rohtash Vs St. of Raj. (2006) 12 S.C.C. 64

3. Ranjeet Singh Vs St. of M.P. (2011) 4 S.C.C.
336

4. Dilip Singh Vs St. of Punj. (1953) AIR SC 364

5. Hari Obula Reddy Vs St. of A.P. (1981) 3 SCC
675

6. S.Sudershan Reddy & ors. Vs St. of A.P. (2006
) 10 SCC 163

7. Jaikam Khan Vs St. of U.P. (2022) 1 Crimes SC
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Rahul Chaturvedi, J.
& Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. Heard Sri Rajiv Lochan Shukla,
learned counsel for the appellant assisted by
Sri K.K. Pandey as well as Sri Dileep
Kumar, Senior Counsel assisted by Sri Amit
Singh, learned counsel for the informant,
learned A.G.A. representing the State of
U.P. On account of certain gray areas in the
instant appeal we have sought an assistance
from the learned counsel for the appellant to
further argue the case and clarify those areas
in the appeal. Which was done by the
counsel in the month of May, 2024 and now
we are in position to decide the matter
finally on merits. After hearing the rival
submission we are proposing to decide this
matter finally on merits.

2. From the record it reveals that
there are two connected Appeals 5905 of
2018 in Re- Saurabh Kumar Vs. State of
U.P. & Criminal Appeal No. 7075 of 2018 in
Re- Bhanu Urf Bhanu Pratap. Both the
appellants
have
preferred
the
aforementioned appeals. Accused-appeallants
namely, Bhanu Pratap and Saurabh Kumar
filed these separate appeals assailing the
legality and validity of judgement dated
03.10.2018 passed by Additional Sessions
Judge/ FTC-2 Bijnor whereby both the
aforesaid mentioned namely Bhanu Urf
Bhanu Pratap and the appellant Saurabh
Kumar were convicted by the concerned
trial court. Now for the sake of convinience,
we have clubbed the records/ memo of both
the appeals and they are being jointly
decided.

From the order sheet of Criminal
Appeal No. 7075 of 2018, it reveals that Sri
Satendra Tiwari learned A.G.A. informed
the Court, that pending appeal the appellant
Bhanu Urf Bhanu Pratap died about two
years back and as such his appeal Criminal
Appeal No. 7075 of 2018 stood abated and
consigned to record vide order dated
21.09.2023 by the Bench of this Court.
Thus, the current situation is that the
only appeal No. 5905 of 2018 in Re:
Saurabh Kumar is pending for final
adjudication.

3. Saurabh kumar, the appellant
before us, has preferred the instant Criminal
Appeal, under section 374(2) Cr.P.C.,
challenging the validity and legality of the
judgment and order dated 03.10.2018,
passed by Additional Sessions Judge/Fast
Track Court No.2, Bijnor, in Session Trial
No.105 of 2016, emanating from case crime
no. 381 of 2015, Police station- Mandawar,
Disrtict Bijnor wherein, he has been
convicted under section 302 read with
section 34 I.P.C., and sentenced to life
imprisonment, with a fine of Rs.50,000/-
and in default of payment of fine, the
appellant has been directed to undergo three
years additional imprisonment, along with
co-accused Bhanu alias Bhanu Pratap.

4. Sri Rajiv Lochan Shukla, learned
counsel for the appellant at the outset
informed the Court that the present
appellant Saurabh Kumar is neither named
in the FIR nor charge sheeted accused and
has been summoned by learned trial judge
vide order dated 06.09.2016 in the excercise
of power under Section 319 Cr.P.C.

He further states that the name of
the appellant Saurabh Kumar for the first
time floated by the informant after one
month and five days of the lodging of the
FIR. It is submitted that, no plausible or
convicing reason was forwarded by the
proseuction for this unexplained delay and
this sea change/ addition in the tone, tenure
and texture of the prosecution story which is
5 All. Saurabh Kumar Vs. State of U.P.
1001
extremely relevant for the present case and
having a potential for, far reaching
repercussion upon the authenticity and
vericity of the prosecution story.

5. In short conspectus, the genesis
and portray of the prosecution case as
mentioned in FIR and other undisputed facts
and circumstances is that on 02.11.2015 at
about 7:50 P.M., a Tehrir (report) was given
by Kamesh Singh (informant/complainant)
at Police Station- Mandawar, District-Bijnor,
divulging therein that at about 7.00 p.m. when
his uncle Dr. Narendra Kumar was present in
his clinic, situated in his residence at village-
Kamalpur, P.S. Mandawar, District Bijnor,
Bhanu Pratap Singh (since dead), resident of
Kamlapur, came at his clinic for having the
medicine. His uncle asked him to sit and wait.
It caused great annoyance and irritation to
him. Bhanu could not squeeze his ire and fury
and opened firing, with an intention to
eliminate Dr. Narendra Kumar (uncle of the
complainant). Consequently, he sustained
fatal fire-arm injury over his abdomen. The
complainant
took
prompt
step
of
informing, by giving a Tehrir (Ext Ka-1),
regarding the said incident, alongwith the
injured in a precarious condition to the
police station Mandawar, where a letter to
the District hospital, Bijnor was prepared
and sent along with the injured to the
hospital for the treatment and necessary
medico legal action.

6. On the basis of the above stated
scribe (Tehrir), dated 02.11.2015 at about
7.50 p.m. a Criminal Case No. 381 of 2015,
under Section 307 IPC was registered
against accused Bhanu Pratap alone, at P.S.
Mandawar, District Bijnor. Particulars of
which were entered into chik FIR Ext ka-21
and G.D. Kaimi Ext Ka-22 Initially, the
investigation of the case was entrusted to S.
I. Guru Pal Singh.
7. Injured Narendra Kumar was
admitted at District Hospital Bijnor and was
medically examined there. Since there was
fatal injury on the vital part of his body i.e.
abdomen, his condition was not improving,
rather deteriorating. Hence, he was referred
to Meerut on the same day for better and
proper treatment at about 8.30 p.m. While
the family members of the injured Narendra
Kumar was taking him to Meerut, he
scummed to his injuries on the way, at about
11.25 pm.

DEVELOPMENTS DRUING
INVESTIGATION

** The information to this effect
Ext Ka-2 was given by Kamesh Singh
(Complainant) on 03.11.2015 to the police
station concerned. Accordingly, the case
was converted into Section 302 IPC. In
addition to this revelant information
regarding the demise of the deceased on
account of gunshot injury, the informant
has tried swell the number of witnesses
for the obivious reasons and as such he
himself along with his aunt Dinesh Devi
w/o late Narendra Kumar Rajput has
become two eye witnesses of the incident
who have seen Bhanu alias Bhanu Pratap
while running away from the place of
occurrence, carrying illegal tamancha in
his right hand.
It is strange, that the name of
appellant Saurabh Kumar does not find
place even in the application dated
03.11.2015.
** Sri Shukla, learned counsel for
the appellant has drawn our attention to
an
application
dated
01.12.2015,
addressed to S.P. Bijnor signed by the
informant annexing the two affidavits of
Sandeep and Amit who have given their
own affidavits. By this application the
informant is of the view that those
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
applications should be kept on record and
taken
into
consideration
while
investigation done by Sri Shyam Singh
Negi I.O. of the Crime Branch.
** In addition to above learned
counsel for the appellant has drawn our
attention to yet another application on
behalf
of
first
informant
Kamesh,
addressed to S.P. Bijnor dated 07.12.2015
(Ext. No. Ka- 3) whereby for the first time
the informant states that in witch he was
in the stage of shock and mental trauma
and turbulance, while lodging of the
parent FIR dated 02.11.2015 but now
after gethering the infomration from the
various quarters, the informant Kames
states that, the main auther of the incident
is Bhanu alias Bhanu Pratap with the help
and aid of Saurabh Kumar (present
appellant) has committed this offence. He
further states after lapse of more than one
month period that this unfortunate
incident was witnessed by the Amit and
Sandeep who shared this information to
the first informant that they have seen the
assaulants and the appellant Saurabh
Kumar running away from the place of
occurrence after comming of offence. He
further accuses that the local police is
trying to save the present appellant
Saurabh Kumar from this offence. It has
been mentioned that the present Saurabh
Kumar have actively participated in the
commission of the offence as he was
nurturing enimical relationship qua his
uncle Narendra Singh, the deceased. Sri
Shukla further states that the name of the
present appellant has surfaced after one
month and five days after lodging of the
original FIR on 02.11.2015. That is how the
name of the present appellant Saurabh
Kumar came into light after much an
inordinate delay, admittedly after collecting
the information from various quarters.
Under circumstances embellishment in the
prosecution story cannot be completely
ruled out. However, this aspect of the issue
would be well considered in the subsquent
paragraph of the judgement.
Learned counsel for the appellant,
drawn our attention to the Ext. Ka- 5,
16.12.2015 whereby the first informant after
one month and forteen days, realising his
blunder that no motive has been attributed to
the present appellant in the FIR, in order to
fill in the blank, and after having the legal
advice for the first time have tried to insert
the motive in the present offence.
We have perused Ext. Ka-5 dated
16.12.2015 whereby he has mentioned that
in fact the present appellant Saurabh Kumar
was having the serious differences and
tangle with son of the deceased namely
Harsh. On this account the deceased went to
Saurabh Kumar's place and have scolded
him and has given to two-three slap to the
him. This is the reason attributed for the
alleged enimical relationship between the
appellant
and
the
deceased.
This
information was shared by the informant
Kamesh after one month and sixteen days of
the lodging of the FIR.
This picemeal improvement in the
prosecution story and the every stage of
investigation casting a serious doubt and
shift from the primary prosecution story,
which
considerably
corrodes
the
authenticity and veracity of the prosecution
story. The informant at every stage is move
an application inserting new fact and feature
in the prosecution story just to fill up the
lacunas as per legal advice received to the
informant.

8- On being informed about demise
of Dr. Narendra Kumar, the police
administration came into action and ensued
investigation. The investigating officer took
into custody the corpse of the deceased
Narendra and carried out the requisite
5 All. Saurabh Kumar Vs. State of U.P.
1003
formalities and arranged to keep the corpse
at mortuary. On 03.11.2015 after completion
of requisite formalities like appointment of
panchan, I.O. got prepared panchnama
(Inquest) of the dead body of the deceased.
It is opined in the inquest report, marked as
Ext Ka-8, that cause of death of the deceased
is fire-arm injury sustained by him in his
abdomen, nevertheless in order to ascertain
the exact cause of death autopsy of the dead
body was proposed. In Post Mortem Report,
Ext Ka-9, the doctor opined that the death of
the deceased Narendra Kumar has occurred
due to profuse bleeding and asphyxia, as a
result of gun shot injury. Meanwhile, the
investigation was transferred to S.O./S.I.
Surendra Kumar Pachori.

9. The I.O./S.I. Surendra Kumar
Pachori inspected the place of occurrence,
prepared the site plan at the instance of
complainant and recorded the statements of
the witnesses u/s 161 Cr.P.C. and on getting
the tip off and clue from the police
sympathizer with respect to presence of
accused Bhanu, arrested him on 04.11.2015
at about 7.00 p.m. and recovered a countrymade pistol with a empty cartridge in its
barrel, allegedly used in the incident, at his
instance, from a plastic sack filled with
paddy, from the room of a tube-well.
Recovery memo Ext Ka-17 and site plan of
place of recovery Ext Ka-26 was prepared in
the presence of witnesses and recovered
weapon physical Ext-6 & cartriges physical
Ext-7,8,9, was sealed on the spot. The
recovered weapon was sent to Forensic
Science
Laboratory
for
forensic
examination.

10. It transpires from the record that
on arrest of the accused Bhanu and recovery
from him, a Case Crime No.382 of 2015,
under Section 25 of Arms Act was also
registered, against him.
11. In view of the applications
moved by complainant, I.O. strived to
collect evidence about involvement of
Saurabh in the crime, but he found no such
evidence against him. However, I.O. after
due
investigation
collecting
sufficient
material
and
evidence,
showing
the
complicity
of
accused
Bhanu
only,
submitted charge sheet against him ,under
Section 302 I.P.C. and 25 Arms Act in the
court of learned C.J.M., Bijnor. Even after
holding the thorough investigation the I.O.
of the case could not collect anything
incriminating against the appellant Saurabh
Kumar and therefore the charge sheet No. 02
under Section 302 I.P.C. was submitted only
against the Bhanu alias Bhanu Pratap and
not against the appellant which has led to the
creation of S.T. No. 105 of 2016.

Similarly, Case Crime No. 382 of
2015 under Section 25 of Arms Act the IO
of the case has submitted the charge No.
2145 of 2015 against the co-accused Bhanu
alias Bhanu Pratap which has eventually
given rise to S.T. No. 106 of 2015.

As mentioned above, name of the
appellant Saurabh Kumar does not find
place in both the charge sheets but was
summoned in the excersise of power under
Section 319 Cr.P.C. in S.T. No. 105 of 2016
under Section 302 I.P.C.

12.

Learned
C.J.M.
took
cognizance of the case. Being exclusively
triable by the court of sessions, committed it
to the Sessions vide its order dated
24.02.2016 for trial, where the case was
registered as S.T. No. 105 of 2016 and S.T.
No. 106 of 2016 against Bhanu under
Section 302 I.P.C. and Section 25 Arms Act
respectively and later transferred it to the
court of Additional Sessions Judge/ Fast
Tract Court No. 2, Bijnor.
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Learned Sessions Judge framed
charges under Section 302 I.P.C. and Section
25 Arms Act against the Bhanu (since
deceased) on 29.03.2016 and accused
Saurabh was charged under Section 302/34
I.P.C. on 21.10.2016. The accused appellant
Saurabh, including co-accused, abjured the
charges, "plead not guilty, and claimed to be
tried".

14. The prosecution, in order to
bring charges home, against accused
persons / appellant, examined following
witnesses in the ocular evidence as under:-

Sr
no.
Name
PW
Nos.
Remarks
1.
Kamesh
Singh
P.W.-
1
(nephew of
the
deceased)
2.
Dinesh
Devi
P.W.-
2
(wife of the
deceased
3.
Sandeep
Kumar
P.W.-
3
(nephew of
the
deceased
4.
Dr.
Yogendra
Tirkha
P.W.-
4
conducted
post
-
mortem
5.
S.I.
Gurupal
Singh
P.W.-
5
I.O.
6.
S.I.
Surendra
Singh
Pachori
P.W.-
6
I.O.
7.
S.I.
S.S.
Negi (Cr.
Branch)
P.W.-
7
I.O.
8.
Dr. Ram
Singh
P.W.-
8
Dr.(issued
Referance
Slip)
9.
Dr. Prem
Prakah
P.W.-
9
Conductedmedico
legal
10. S.I. Satish
Kumar
P.W10
I.O.

15. In order to further substantiate
the charges levelled against the appellant,
prosecution
has
also
adduced
the
documentary evidence as under:-

Sr
no
.
Documents
Exhibited
Prove
d by
Ext
Nos.
1
Tehrir
P.W.-
1
Ext.
Ka- 1
2
Application
after demise
of
deceased
dated
03.11.2015 to
S.O.
Mandawar
P.W.-
1
Ext.
Ka- 2
3
Application
dated
07.12.2015 to
S.P. Bijnor
P.W.-
1
Ext.
Ka- 3
4
Application
dated
01.12.2015 to
S.P. Bijnor
P.W.-
1
Ext.
Ka- 4
5
Application
dated
16.12.2015 to
S.P. Bijnor
P.W.-
1
Ext.
Ka- 5
6
Affidavit
of
Sandeep
P.W.-
3
Ext.
Ka- 6
7
Recovery
Memo
of
country-made
pistol
P.W.-
3
Ext.
Ka- 7
8
Panchayatna
ma of Dead
body
P.W.-
3
Ext.
Ka- 8
9
Post-mortem
Report
P.W.-
4
Ext.
Ka- 9
5 All. Saurabh Kumar Vs. State of U.P.
1005
10
Letter to R.I.,
Letter
to
Doctor, Photo
Lash, Challan
Lash,
Photo
Bullet,
Sample Seal
P.W.-
5
Ext.
Ka- 10
to Ka-
14
11
Site
Plans
regarding
place
of
occurrence,
recovery
of
the
weapon
and chakroad
P.W.-
6
Ext.
Ka15,Ka16
12
F.S.L Reports
P.W.-
7
Ext.Ka
-
17,Ka1
8
13
Call
Detail
Report
P.W.-
7
Ext.
Ka-19
14
Charge-Sheet
U/S 302 IPC
P.W.-
7
Ext.
Ka-20
15
Chik FIR
P.W.-
7
Ext.
Ka- 21
16
Kaimi G.D.
P.W.-
7
Ext.
Ka-22
17
Place
of
occurrence
Plan
P.W.-
7
Ext.
Ka- 23
18
Reference
Slip
P.W.-
8
Ext.
Ka- 24
19
Medical
Report
P.W.-
9
Ext.
Ka- 25
20
Site plan with
Khsra
P.W.-
10
Ext.
Ka- 26
21
Charge-Sheet
U/S 25 Arms
Act
P.W.-
10
Ext.
Ka- 27
22
Application
forchange of
the I.O.toC.O.
Bijnor

P.W.-
10
Ext.
Ka- 28
23
Chik
FIR
regard Arms
Act
P.W.-
10
Ext.
Ka- 29
24
Dakhila G.D.
P.W.-
10
Ext.
Ka- 30
25
Chik
FIR
regard Crime
No. 381/2015
u/s 307 IPC
P.W.-
10
Ext.
Ka- 31
26
Entry G.D.
P.W.-
10
Ext.
Ka- 32
27
Carbon copy
Tarmimi G.D
P.W.-
10
Ext.
Ka- 33

16.

Besides,
in
further
corroboration to prosecution case, it has also
exhibited physical objects in its evidence as
under:-

Sr
no.
Objects
Exhibited
Pws:
who
proved
Ext
Nos.
1
Four Images
on the time
of
Postmortem
and
One
photo
of
bullet which
came out of
the body.
P.W.-4
Physical
Ext 1 to
5
2
Contry
Made Pistol
(Tamancha)
P.W.-5
Physical
Ext.- 6
3
Three
Cartridge
P.W.-5
Physical
Ext.-
7,8,9
4
Bullets
recovered
from
dead
body
P.W.-5
Physical
Ext.- 10,
11
5
Paper
Coverd
Bullet
P.W.-5
Physical
Ext.- 12
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
6
Bundle
P.W.-5
Physical
Ext.- 13
7
White
Polythene
P.W.-5 Physical
Ext.- 14
8
C.D. which
could not be
played
P.w.-6
Physical
Ext.- 15
9
Cloths
P.w.-6
Physical
Ext.- 16

17.

On
conclusion
of
the
prosecution evidence, the appellant was
examined under Section 313 Cr.P.C., with
reference to prosecution evidence on record.
As many as 42 queries were put to him by
the learned trial court. In his statement he
denied that renounced the prosecution story
and stated that complainant got prepared
wrong and false affidavits of various
persons, which contains not even an iota of
truth. He know, nothing about the incident
as stated in prosecution. He denied his
presence on the place of occurrence at the
time of incident, firing by Bhanu upon the
deceased with a country made pistol in his
abdomen, his medical treatment at district
hospital Bijnor or Meerut. He stated that FIR
is based on a wrong facts. Incident was not
seen by the complainant Kamesh and his
aunt Dinesh Devi who reached there on
hearing the fire. In answer to a suggestive
query he stated that it is wrong to say, that
PWs saw fleeing him along with Bhanu
Pratap after fire. He did not comment that
the post mortem of the deceased conducted
on 03.11.2015 in district hospital Bijnor. He
stated that the site plan was wrongly
prepared and nothing incriminating was
recovered from him.

The appellant stated that the
evidence of PW- 1 Kamesh, PW-2 Dinesh
Devi, PW-3 Sandeep Kumar, is wrong and
not believable. He further stated that
evidence of PW-4 doctor Yogendra Tirkha.
PW-5 Gurupal Singh, PW-6 S.I. Surendra
Singh Pachori, PW-7 Shyam Singh Negi,
PW-8 Ram Singh, PW-9 doctor Prem
Prakash, PW-10 S.I. Satish Kumar is wrong
and reports are wrongly prepared by them.
He was falsely implicated due to enmity and
he is innocent.

18. The accused/ appellant did not
adduced any oral or documentary evidence
in his defence.

19. The Learned Trial Court after
examining and evaluating the testimony of
the
prosecution
witnesses,
oral
and
documentary, and other material on record,
came to the conclusion that there is a
complete chain of evidence showing the
complicity of accused appellant in the
commission of the said crime and the
prosecution has successfully been able to
prove its case beyond reasonable doubts,
pointing the guilt against the accused
persons and as such convicted Bhanu alias
Bhanu Pratap under Section 25, Arms Act
and
sentenced
him
for
one
year
imprisonment along with fine of Rs.1,000/-.
The appellant Saurabh too was convicted in
Session Trial No.105 of 2016, under Section
302 read with 34 IPC for life imprisonment
with fine of Rs.50,000/- with default clause.
Thus, it is evident that the learned trial judge
after taking the recourse of Section 34 I.P.C.,
have roped the appellant under Section 302
read with 34 I.P.C.

20. Broadly speaking learned
counsels for the appellant putforth following
arguments in his favour:

A- Appellant Saurabh Kumar is
not named in the FIR:- It has been argued
by the counsel for the appellant that
appellant is not named in the FIR dated
02.11.2015 nor his name figure in the
5 All. Saurabh Kumar Vs. State of U.P.
1007
application given by the informant to the
S.P. Bijnor on very next date dated
03.11.2015. Nor any role attributed to the
appellant in his 161 statement given to the
police. As mentioned above at the very
belated stage about one month and five days
name of the appellant has figured along with
his so called accomplice Bhanu alias Bhanu
Pratap. From the application it is evident
that the actual role of firing has been
attributed to the co-accused Bhanu alias
Bhanu Pratap and it is alleged that when
actual offence was taken place the present
appellant was standing over the channel and
after the incident both of them fled away
from the place of occurrence. Interesting
feature of the case is that informant and his
aunt Dinesh Devi both of them claims that
they are the eye witness of the incident but
surpringingly neither in the FIR nor in the
statement 161 Cr.P.C. nor given application
to the S.P. Bijnor has even wisper the name
of the present appellant. It is only after
gathering information from the various
quarters friends and relatives have tried to
stigmatize falsely implicate the appellant in
this offensive.
B- Appellant is not charge sheeted
accused:- that it is pertinent to point out that
though the information vis-a-vis and other
witnesses have tried to figured the name of
the appellant as a perpetrator of the crime
but during the course of the investigation no
active participation of the appellant was
found hence after thoroughly investigated
the
matter
the
investigating
officer
submitted the chaege sheet against the
Bhanu Pratap but no charge sheet have filed
against the appellant.

C- No motive to the appellant:-
That
though
during
the
course
of
investigatio the enmity was established
between the co-accused Bhanu Pratap and
the deceased i.e. Ext. Ka- 23 but neither the
appellant is having any motive nor having
any concerned with the Bhanu Pratap.
D-
No
Recovery
from
the
appellant:- That it is also pertinent to point
out that there is no connecting material
against the appellant to connect in the
present crime in question even the alleged
weapon of crime was also recovered from
the alleged co-accused Bhanu Pratap
whereas no recovery of any weapon or any
incrementing material was recovered from
the possession or pointing out of the
appellant.
E- Appellant Summoned u/s 319
of Cr.P.C. That it is also pertinent to point
out that after filing the police report and
during the course of trial the prosecution
have filed an application u/s 319 of Cr.P.C.
but without considering the material the then
available on record and without prpoerly
appreciated the evidence the learned Court
concerned have summoned the appellant
vide its order dated 06.09.2016.
F- Disputed Place of Occurrence:-
That it is also pertinent to point out that the
place of occurrence is higly doubtful which
create a serious shadow of doubt on the
testimony of the P.W.- 1 & P.W. - 2.
G- Referring the evidence and other
relevant material placed by the prosecution
on record, learned counsel for the appellant,
Sri Rajiv Lochan Shukla, has assiduously
argued that appellant was neither named in
the tehrir (Ext Ka-1) nor in first information
report (Ext Ka-21). Nothing incriminating
material recovered from his possession or
pointing out. There is no eye witness of the
incident or who have seen the accused
Saurabh committing the crime and running
away from the scene of occurrence. The
witnesses examined by the prosecution are
interested and partition. There are material
contradictions in their statements. Place of
occurrence is also disputed. The name of the
appellant for the first time came on the
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
surface in an application dated 07.12.2015
(Ext Ka-3) moved to SP Bijnor.
The application contains concocted,
deliberated and after thought story. He was
not charge sheeted by the I.O. Appellant was
erroneously summoned u/s 319 Cr.P.C., to
face the trial. Above all, no motive is
attributed to the appellant although during
the course of investigation, the enmity was
established between the co-accused Bhanu
Pratap and the deceased regarding chak road
but neither the appellant is having any
motive nor having any concerned with the
Bhanu
Pratap.
statements
of
PW-1
complainant Kamesh , PW-2 Dinesh Devi
and PW-3 Sandeep Kumar are not reliable
and believable. He finally argued that
prosecution has failed to prove its case
beyond reasonable doubts. There is no
justification to convict and sentence to a
person against whom there is no complete
chain of evidence pointing towards the guilt.
The learned trial judge failed to take into
account and appreciate the discrepancies
occurring in the evidences. The finding of
guilt recorded by the court below are not
based on proper and correct evaluation and
appreciation of evidence, rather the learned
trial judge has drawn adverse inference
while there is no evidence worth name
available against the appellant showing his
complicity.
Therefore,
the
impugned
judgment
and
order
convicting
and
sentencing the appellant in the aforesaid
crime is not sustainable in the eyes of law
and the same is liable to be set aside and the
appellant deserves to be absolved of the
charges of murder under Section 302 read
with section 34 IPC. These arguments have
been further elaborated in the course of
evaluation of evidence.
Per contra, learned counsel for the
informant as well as learned A.G.A.
representing the State, and learned private
counsel for the complainant opposed the
submissions advanced by the learned
counsel for the appellant and contended that
evidence has to be weighed and not counted.
If the evidence is cogent, credible and
trustworthy having a ring of complete chain
of incident, it cannot be jettisoned. The
emphasis is laid on value, weight and quality
of evidence rather than on quantity,
multiplicity or plurality of witnesses. It is
submitted that there are sufficient materials
to depict the involvement of the appellant in
the commission of said offence. The fatal
injury to Dr. Narendra Kumar has been
caused in a very brutal and horrific manner
with the sole object of taking away his life.
The prosecution has fully proved that the
accused appellant has shared in the
commission of said offence. It is compatible
to illustrate here that Dr, Narendra Kumar
(deceased) has been shot in a very diabolical
and gruesome manner with the sole object of
taking vengeance. The execution of crime
has been carried out in a pre-planned and
pre-concerted manner, which is conspicuous
on record. If there is any defect in
investigation or inconsistencies in the
testimony of prosecution witnesses, the
entire prosecution story cannot be discarded.
The findings of guilt recorded by the trial
court are based on correct appreciation and
evaluation
of
evidence
on
record.
Blackening of the wound can be found only
when the shot is found from a distance of
three to four feet and not beyond the same.
The learned A.G.A. as well as
learned counsel for the complainant further
argued that First Information Report as
noticed herein above was lodged at the
quickest possible time. As per prosecution
case the incident has occurred on 02.11.2015
at about 07.00 p.m. and tehrir (Ext Ka-1) of
the same was presented to P.S. Mandawar at
07.35 p.m. on the same day. The first
information report is not supposed to be an
encyclopedia of the entire event. The
5 All. Saurabh Kumar Vs. State of U.P.
1009
learned trial judge has found sufficient
materials to take cognizance against the
appellant by allowing the application under
Section 319 Cr.P.C. The findings recorded
by the trial court cannot be said to be
erroneous or perverse. (P.W.-1) Kamesh
Singh and (P.W.-2) Dinesh Devi, who are the
eye witnesses of the case, have fully
supported the prosecution version. The
ballistic report also supports the prosecution
version, as the country made pistol, which
was used in the commission of crime, was
recovered on the pointing out of accused
Bhanu. Thus, learned trial judge has sifted
and weighed entire evidence on record and
has rightly convicted and sentenced the
appellant.

Learned counsel for the informant,
has further elaborated these arguments of
during the course of analysis of evidence.

22. In view of the rival submissions
made by learned counsels for the parties and
having gone through the material available
on record and having regard to entire gamut
of the case, the only question that falls for
our consideration is whether the trial court
committed any error in passing the
impugned judgment and order. Therefore,
their submissions will be tested on the
touchstone
of
the
given
evidence,
undisputed facts and circumstances and
legal scenario.

Analysis of the issues involved

21. Now, we propose to analyse
ocular evidence adduced by the prosecution.
PW-1 complainant Kamesh, PW-2 Dinesh
Devi, are the witnesses of facts. They were
examined twice by the prosecution. Once
when appellant was not made an accused
and second time when he has been
summoned u/s 319 Cr.P.C.
22 PW-1 Kamesh Singh is the
complainant of the case. He claimed himself
to be an eyewitness of the incident. He has
deposed that on 02.11.2015 he was sitting in
the residence of his uncle Dr Naraendra
Kumar at about 07.00 p.m. Bhanu alongwith his companion saurabh, came at the
clinic of his uncle, which is situated in his
residence. Bhanu entered in the clinic, while
Saurabh stood near Chanel. As soon as Dr.
Narendra got up to give the medicine, Bhanu
shot him by country made pistol, with the
intention of killing him. The bullet hit the
abdomen of his uncle. As soon as he and his
aunt ran outside to catch the accused, Bhanu
and Saurabh, ran away waving the pistols in
their hands. He has also stated that about 89 months before the incident, some hot
altercation had taken place between Saurabh
and his uncle's son Harsh kumar then his
uncle had gone to the residence of Saurabh
and reprimanded and scolded him and even
slapped Saurabh three four times. Since then
appellant Saurabh was nurturing animus and
grudge against his uncle Dr. Narendra.
Saurabh and Bhanu are the teaching in the
same school and are close friends. A few
days before the incident, Saurabh had told
Dhyan Singh and Ankur of Basi that Dr.
Narendra to be killed. After the incident they
took injured to the police station, where he
gave a scribe (Therir), Ext. Ka-1, about the
incident, which is in his writing and
signature. The witness proved the scribe as
Ext. Ka-1. At the time of occurrence he was
sitting with his aunt Dinesh Devi in the
Varandah in side her residence. Thereafter
injured Dr. Narendra was brought to District
Hospital Bijnor, where viewing his pitiable
condition doctor refereed him to Meerut. He
died on the way to Meerut. They return to
police station, and gave the information in
writing, Ext Ka-2. about demise of Dr.
Narendra Kumar. This application is also in
his writing and his signature. The witness
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
proved it. He further stated that on
07.12.2015 he gave an application to the S.P.
Bijnor to take appropriate action against the
police officers because Saurabh was arrested
by the police and after keeping for one night
in the police station, set him free. He further
stated that before 05.11.2015 he has given
an
other
application.
Similarly
on
01.12.2015 and 16.12.2015, he gave other
applications along-with the affidavits, to
S.P. Bijnor. He proved these applications as
Ext Ka 4 and Ka 5. Besides he, Sandeep and
Amit are also witnessed, Bhanu and
Saurabh, after shooting his uncle Dr.
Narendra, both of them has country made
pistol in their hands, while running Bhanu
was saying to Saurabh that he has shot
Narendra, as per your direction, save me.

23. PW-1 complainant Kamesh has
been thoroughly cross examined by the
learned counsel for the defence. In his cross
examination he stated that earlier he had
been a doctor, but now has left the medical
practice and running the business of RCM
and forming. On the day and time of the
incident he was sitting in the Varandah of the
residence of his uncle. He had gone there by
chance, just to meet his uncle at about 6.307.00 p.m. His aunt was also there. He
reached at police station at about 7.30-7.45
pm where on the dictation of Daroga Ji he
wrote the tehrir Ext Ka-1. He had told to
Daroga ji that he was present at the spot at
the time of the occurrence but it is correct
that the same has not been scribe in Ext Ka1. I have seen the incident. When he gave the
tehrir, it was well with in his knowledge that
the fact that he was present at the time of
incident and witnessing the evidence, is not
written in the tehrir. When he inquired about
this daroga ji answered that complete the
formalities and take the injured for
treatment. At an other place he confessed
that he has not communicated to any one
that he have seen the incident. At that time,
he never gave in writing to any one that he
witnessed the occurrence. He has not made
any complaint about. The fact that daroga ji
Surendra Singh Pachauri restrained him in
writing his statement in this regard in the
tehrir. When the investigation handed over
to the crime branch, he had not disclosed to
them that FIR was written as per dictation of
Surendra Singh Pachauri and not voluntarily
by him. He had given a first application on
05.12.2015 regarding the incident, which is
not on record. However, photocopy of the
same was annexed by him to his application
u/s 319 Cr.P.C. He had orally informed
about the demise of his uncle on the very day
of his death, he do not remember the date. It
it true that in Ext Ka-3, it is not mentioned
that he witnessed the incident, even in Ext
Ka 4 dated 01.12.2015, it was not mentioned
that he witnessed the incident. He , his uncle
and aunt were sitting in the Varandah of the
residence. There is only a window between
the clinic and residence. Uncle had gone to
the clinic room to give medicine, he and his
aunt remained sitting in the Verandah. When
the fire took place, he was sitting near aunt.
On hearing fire he got up and ran to see as
to what has happened. He ran towards uncle
and found him hit by a bullet in his stomach.
When he reached, the aunt came with him,
the doctor was standing after being shot,
both of us made him sit on the chair. He had
motor cycle with him. Uncle was taken to
the hospital to the car. His uncle's son had
gone to call Gaurav, the car owner. It would
have taken 20-25 minutes the car to arrive.
He did not gave any first aid to the injured
uncle during that time. Even uncle did not
ask to give him any medicine. There was no
bleeding when my uncle was shot. No blood
had poured on the ground at the scene of the
incident. Only a little bit of blood was on the
clothes. He spent about 20 minutes in the
police station concerned. There after went to
5 All. Saurabh Kumar Vs. State of U.P.
1011
District hospital, Bijnor. He admitted the
injured uncle, but his signature is not
obtained in this behalf. His injured uncle
was sent from Bijnor to Meerut. He has
never told to any police officer, that there
was a dispute between his uncle and Bhanu
regarding chak road. There was no dispute
between them. If the inspector did not
mention this in his statement, he cannot tell
the reason. He saw Saurabh and Bhanu
running. A part from him Sandeep and Amit
of his village also saw Bhanu and Saurabh
running away after shooting his uncle
Narendra. He was not refrained from telling
this to crime branch. Such an statement was
not written by any previous officer or in any
application that while running away, Bhanu
was telling Saurabh that he had shot Dr.
Narendra as per his instructions, save him.

24. In his further cross-examination
PW-1 has stated that the incident took place
at about 7.00 p.m. It was dark. Electricity
was being supplied and tube light was on in
the clinic room and street light of the village
was also supplied. Injured went up to
vehicle by foot but no bloodstained found
there in the car. He has not named Dinesh
Devi as witness, in the application by which
he informed the death of his uncle. In the
application dated 07.12.2015 he has not
mentioned that he had seen Saurabh on the
spot. While going to Meert by ambulance
police personnel were with them. On
returning they managed to keep the dead
body in the mortuary. The witness has
referred the narration between him and his
injured uncle. He told to I.O. that he and his
aunt reached on the spot and both of them
saw Bhanu running with a pistol.